September 30, 2023

Earlier this month I testified earlier than the U.S. Congress’s U.S.-China Financial and Safety Evaluation Fee relating to Rule by Regulation in China. Go here when you want to see my testimony and/or the total day of testimony given by varied much more knowledgeable China legislation professors.

That is the third time I’ve testified earlier than a Congressional commision relating to China, and the second time I’ve accomplished so stay. I point out the “stay” half as a result of I discover strolling the halls of the Dirksen Senate Workplace Constructing and seeing the places of work of United States Senators to be an incredible and humbling expertise. I analogize it to how I felt the primary time I attended a Main League Baseball sport — coincidentally additionally in Washington DC. I used to be about seven years outdated and I bear in mind strolling up the steps and out by way of a gap to have a look at the sphere. I can nonetheless image the large subject with the gorgeous and completely manicured grass as if it had been yesterday. I used to be in awe. Whole awe.

Having the chance to assist the U.S. authorities — by a miniscule quantity — creates that very same sense of awe for me. To cite Winston Churchill: “Democracy is the worst type of Authorities apart from all these different varieties which were tried infrequently.”

Anyway, the under is the written testimony I supplied to the Fee earlier than I testified stay:

My identify is Dan Harris. I’m a global lawyer who has for the final 20 years been serving to American and European corporations navigate China’s authorized panorama. I point out this as a result of a lot of what I’m going to inform you right now is predicated on what I’ve seen whereas representing corporations that do enterprise in or with China.

I’ll largely be speaking about how the Chinese language Communist Get together makes use of legal guidelines and laws to maximise its energy and management to the detriment of American corporations. This can be a tactic often called lawfare.

I’ve seen firsthand how China employs lawfare to hurt American companies, and I’ve additionally seen how China’s lawfare towards American corporations elevated when Xi Jinping grew to become the CCP’s highest rating officer in 2013, and once more when he grew to become “president for all times” earlier this yr. The worldwide humiliation China suffered from the spy balloon incident, coupled with our authorities’s efforts to disclaim China entry to modern chip expertise, make me assured that China’s lawfare towards American corporations will proceed to extend.

QUESTION ONE. How is the CCP’s political affect more and more shaping authorized rulings in home Chinese language courts? What’s the expertise of U.S. corporations in Chinese language courts on points which might be influenced by nationalism or Get together aims? How have these circumstances modified beneath Xi Jinping?

 My shoppers typically ask me in regards to the equity of China’s courts and my reply has at all times been the identical. In case you are suing a Chinese language firm for breaching a contract to make rubber duckies, you doubtless will get a good trial. In case you are suing a Chinese language firm for stealing cutting-edge semiconductor mental property, good luck.

Many China attorneys name this the 90-10 rule. Ninety p.c of the time the Chinese language courts rule pretty as a result of that permits China’s financial system to operate and that in the end advantages the CCP. But when a case is essential to CCP energy and management, equity will get tossed out the window. That ten p.c is lawfare.

Xi Jinping typically makes clear that China’s nationwide safety pursuits are broader and extra vital than they as soon as had been, and that China’s financial and funding pursuits are actually narrower and fewer vital. Studying the writing on the wall – writing that has largely been propagated by state-owned media retailers – the Chinese language courts have acted accordingly. Because of this the variety of circumstances Chinese language judges see as implicating China’s nationwide safety pursuits have elevated. And this has been to the detriment of international corporations.

Talk about the design and implementation of China’s cybersecurity legislation. What prompted its introduction and what sectors is it geared in the direction of? Is it equally enforced for home and international corporations? How is it shaping the business conduct of international corporations working in China or doing enterprise with Chinese language corporations?

 Underneath China’s cybersecurity legislation, the CCP has authorized entry to any knowledge saved in China. This legislation  additionally offers authorized entry to knowledge held by any firm or particular person in China, wherever that knowledge could also be saved. This has basically at all times been true, however with every iteration within the legislation, entry has turn into extra express. China has enacted these legal guidelines and laws so the CCP can monitor just about all the things in China.

The CCP solely not often makes use of its energy to mandate {that a} international firm flip over its knowledge, however it is because it already has prepared entry to all knowledge in China. The CCP controls China’s web, communication techniques, and server farms. The CCP has pushed practically all the things — from utility payments to each day communication — into WeChat so it might monitor what everybody does in China. It has accomplished a lot the identical factor with firm knowledge.

What authorized recourse do multinationals have once they really feel that their proprietary expertise or cybersecurity has been compromised? Talk about the expertise of corporations in search of to guard delicate applied sciences in Chinese language courts, with a give attention to corporations creating expertise helpful to the CCP.

 Multinationals typically file IP theft circumstances in Chinese language courts. If that lawsuit includes rubber ducky expertise, they’ll prevail. But when their case includes cutting-edge semiconductor expertise, they not often can prevail. The extra cutting-edge and vital the expertise, the much less doubtless the multinational will prevail in an IP case in a Chinese language court docket.

Multinationals typically can sue a Chinese language firm outdoors of China. But when a multinational secures a judgment or award outdoors China and that judgment or award must be enforced in China – which is commonly the case — that enforcement will happen solely whether it is within the CCP’s curiosity.

What are different main legal guidelines, such because the anti-monopoly legislation, or enforcement patterns, equivalent to China’s tendency towards regulatory crackdowns, that China makes use of to tilt the enjoying subject in favor of its personal corporations or advance coverage targets? How do these legal guidelines and their implementation influence U.S. pursuits, and what can the USA do to mitigate or stop this influence? 

 China’s new counter-espionage legislation expands the definition of espionage to incorporate any “gadgets associated to nationwide pursuits,” with none parameters for what constitutes nationwide pursuits. This vagueness within the legislation is meant to permit the CCP to arrest anybody at any time.

The CCP will use this legislation towards foreigners and Chinese language residents which might be seen as too near foreigners. This can make it tough and costly for international corporations to rent and retain workers in China. In flip, this can scale back international firm competitiveness in China.

China excludes international corporations from many industries. Whereas we debate banning TikTok, all main U.S. social media platforms are basically banned from working in China.

If the CCP or the Chinese language individuals are indignant with a selected nation, you’ll be able to anticipate the CCP to crack down on corporations from that nation. The CCP doesn’t randomly select the businesses on which it cracks down. It chooses corporations primarily based on the message its crackdown will ship. The current raids towards The Mintz Group and Bain & Firm had been to ship the message that the CCP controls details about China and it’ll punish those that search to disclose data the CCP doesn’t need revealed.

The Fee is remitted to make coverage suggestions to Congress primarily based on its hearings and different analysis. What are your suggestions for Congressional motion associated to the subject of your testimony?    

 The CCP will harass and discriminate towards American corporations till there are not any extra American corporations in China.

One of the simplest ways for the U.S. authorities to scale back CCP strong-arming towards U.S. corporations is to assist these corporations go away China. The U.S. authorities ought to present loans and grants to American corporations that transfer their operations or manufacturing from China to the U.S. or to an allied nation. Australia and Japan have accomplished this, and we should always too—possibly considerably alongside the strains of what we’re doing with the semiconductor trade. The U.S. authorities also needs to enact laws that encourages imports from international locations that share our values and we must be doing extra to cease American funding of Chinese language corporations that function towards our safety pursuits.